Rosa Maria Hernandez. (CNN VAN photo)

By NOMAAN MERCHANT Associated Press&nbsp|&nbsp

Posted: Tue 3:31 PM, Oct 31, 2017

HOUSTON (AP) -- The American Civil Liberties Union sued the U.S. government Tuesday to demand that it release a 10-year-old girl with cerebral palsy detained by Border Patrol agents after surgery because she is in the U.S. without legal permission.

The ACLU filed a lawsuit in federal court in San Antonio, where Rosa Maria Hernandez is being held in a facility for unaccompanied minors who have entered the country illegally.

The Border Patrol has said its agents took the child into custody last week after emergency gallbladder surgery out of concern for her welfare. But the ACLU argues in its lawsuit that Rosa Maria's detention violates federal law and puts her health at risk.

"Nothing stops the government right now from returning Rosa Maria to the family she's lived with her entire life," said Michael Tan, an attorney for the ACLU.

Rosa Maria's parents brought her into the United States from Mexico in 2007, when she was 3 months old, said Leticia Gonzalez, an attorney for the family. Her parents are also in the U.S. without legal authorization and live in the Texas border city of Laredo. Gonzalez says that due to her cerebral palsy, Rosa Maria has the mental capacity of a child who is 4 or 5 years old.

To get to a children's hospital in Corpus Christi, about 150 miles away, the child had to cross one of the many interior checkpoints the Border Patrol operates in South Texas at which it checks the legal status of people crossing. Rather than risk being detained themselves, her parents sent her with a cousin who is a U.S. citizen.

After discovering that Rosa Maria was not in the U.S. legally, Border Patrol agents followed the vehicle she was in to the Corpus Christi hospital. There, Gonzalez said, the agents insisted on keeping the door to Rosa Maria's room open so they could watch her, then took her after the surgery to a federal facility in San Antonio. A video released by Gonzalez shows green-uniformed agents carrying Rosa Maria in a stretcher.

Rosa Maria now faces deportation. She remained Tuesday at the facility, which normally holds young people who have recently crossed the Rio Grande on their own, rather than the children of families living in the U.S. without legal permission.

Priscila Martinez, an activist at the Workers Defense Action Fund, said that Rosa Maria appeared to be not doing well in the facility. According to the child's family, Rosa Maria is refusing her favorite bread and appears to be withdrawing socially. Instead, she keeps saying that she wants to go home, Martinez said.

Facing strong criticism from immigration advocates and several Democrats in the U.S. House, the Border Patrol has defended its handling of the case and argued its agents couldn't let her go.

In a statement Monday, U.S. Customs and Border Protection said it had to take Rosa Maria into custody because she did not have legal permission to be in the country and was not accompanied by a parent or legal guardian, making her the same as an unaccompanied minor under the law. The agency said it did not consider her 34-year-old cousin to be her legal guardian.

The agency said that "there is no discretion with regard to the law whether or not the agents should enforce the law."

But a 2014 policy memo on detaining immigrants in the U.S. illegally, still posted on CBP's website, says Department of Homeland Security employees should apply "prosecutorial discretion" to decisions, including "whom to stop, question, and arrest" and "whom to detain or release."

"It is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases," the memo says.

In the first week of his administration, President Donald Trump issued an executive order that broadened the priorities immigration officials are supposed to pursue. They include deporting immigrants who have been convicted or charged with a crime, abused public benefits, or "otherwise pose a risk to public safety or national security."

Tan called Rosa Maria's case "contrary to law and the Constitution," and said that by CBP's logic, federal officials could "take children whom it decides are 'unaccompanied' and separate them from their families and detain them."

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